Gajanan Samadhan Lande vs Sanjay Shyamrao Dhotre

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 7923 OF 2010

GAJANAN SAMADHAN LANDE Appellant (s)

VERSUS

SANJAY SHYAMRAO DHOTRE Respondent(s)

J U D G M E N T

R.M. LODHA, J.

This is an Appeal under Section 116-A of the

Representation of the People Act, 1951 (for short "the

1951 Act").

2. The respondent - Sanjay Shyamrao Dhotre -

contested the election from Akola Constituency for the

15th Lok Sabha and was declared elected.

3. The appellant - a voter in the constituency -

challenged the election of the respondent (hereinafter

referred to as "returned candidate") in the election

petition before the Bombay High Court, Nagpur Bench,

Nagpur. The invalidity of the election of the returned

candidate was sought under Section 100(1)(a) of the 1951

Act. The appellant avered in the election petition that

the returned candidate was disqualified to contest the

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election as he was holding the 'office of profit' under

the Government company being a Director of the

Maharashtra Seeds Corporation (for short "Corporation").

Section 10 of the 1951 Act and Article 102(1)(a) of the

Constitution of India were pressed into service by the

election petitioner in this regard.

4. The returned candidate contested the election

petition and disputed that he was holding an 'office of

profit' under the Government. His case was that he was

elected as a Director of the Corporation from Growers

constituency and the allowances received by him as an

elected Director were not in the nature of profit but

were paid to him by way of reimbursement of actual

expenses. Moreover, the returned candidate was not

appointed by the Government nor the Government has any

right to remove or dismiss him from the elected office of

Director of the Corporation. He also set up the case

that the Government has no control over the performance

of functions of the elected Director of the Corporation.

5. On the basis of the pleadings of the parties, the

High Court framed 14 issues. The appellant examined two

witnesses, including himself and tendered documentary

evidence. On the other hand, the returned candidate

examined himself and one more witness who was Deputy

General Manager (Audit) of the Corporation. He also

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produced documentary evidence in support of his defence.

6. The High Court by an elaborate judgment, on

consideration of the evidence on record and on hearing

the counsel for the parties, held that the returned

candidate was not disqualified to be a member of

Parliament either under Article 102(1)(a) of the

Constitution or under Section 10 of the 1951 Act.

7. Mr. Vishaal Jogdand, learned counsel for the

appellant, assailed the correctness of the judgment of

the High Court and submitted that the returned candidate

at the time of nomination and election was holding the

office of profit. In this regard, he referred to the

allowances received by the returned candidate, namely,

Rs. 0.75 Lakh meeting allowance calculated at the rate of

Rs. 300/- per day; telephone allowance in the sum of Rs.

2,000/- per month; dearness allowance paid at the rate of

Rs. 100/- for metropolitan cities and Rs. 85/- for other

places and also sale of seeds at concessional price.

Learned counsel further submitted that the Corporation

was a Government company and Government has full control

and supervision over the company as well as its

directors. Learned counsel also submitted that the

returned candidate as an elected Director was entitled to

enter into contract with the company and make profit from

such contract. He invited our attention to Section 10 of

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the 1951 Act and Article 102(1)(a) of the Constitution

and submitted that the facts clearly demonstrate that the

returned candidate was holding the 'office of profit'.

8. On the other hand, Mr. Saurav S. Shamshery,

learned counsel for the respondent, stoutly defended the

findings recorded by the High Court. He also invited our

attention to a decision of this Court in Pradyut Bordoloi

Vs. Swapan Roy1 in support of his argument that the

first and foremost thing that the election petitioner, in

a case as the present one, is required to show is whether

the Government has appointed the returned candidate and

has power to remove him from the office and if the

election petitioner has not been able to show that,

nothing further is required to be seen.

9. Section 10 of the 1951 Act reads as follows :-

"10. Disqualification for office under Government company.--A person shall be disqualified if, and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than twenty-five per cent share."

10. Section 10 refers to category of persons who

shall be disqualified from contesting election, inter

alia, of either House of Parliament. These persons are,

managing agent, manager or secretary of any company or

1 AIR 2001 SC 296

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corporation (other than a co-operative society) in the

capital of which the appropriate Government has not less

than twenty-five per cent share. The Government of

Maharashtra admittedly has more than 25 per cent share in

the Corporation. The Corporation is, thus, covered by

Section 10. However, the returned candidate is an elected

Director from the Growers constituency on the Board of

the Corporation. He is neither managing agent nor manager

nor secretary in the Corporation. Section 10 of the 1951

Act is, therefore, not at all attracted in the present

case.

11. Article 102 of the Constitution provides for

disqualifications for membership. Article 102(1)(a) is

relevant for the present purposes and it reads as

follows :-

"102. Disqualifications for membership.--

(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament-

(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;

(b) x x x (c) x x x (d) x x x (e) x x x"

12. For attracting the disqualification provided in

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the above provision of the Constitution, a person must be

holder of 'office of profit' under the Government of

India or the Government of any State. The returned

candidate is not the holder of any office of profit under

the Government of India. Is he the holder of the office

under the Government of Maharashtra? Our answer is in

the negative for more than one reason.

13. In the first place, the returned candidate was

holding an elected office and not an office by

appointment. The test of appointment is decisive. The

Government had nothing to do in the election of Director

from the Growers constituency. Moreover, being an

elected office, the Government has no power to remove the

returned candidate from that office. On this ground

alone, it must be held that the returned candidate does

not hold an office much less an 'office of profit' under

the Government.

14. Secondly, one of the essential necessities in

determining the question whether the office is an 'office

of profit' or not is whether such office carries

remuneration in the form of pay or commission. As an

elected Director, the amount paid to the returned

candidate by way of allowances, by no stretch of

imagination, can be said to be 'renumeration' in the form

of pay or commission. It is only a sort of reimbursement

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of the expenses incurred by the returned candidate.

Essential condition that office carries remuneration in

the form of pay or commission is also not satisfied.

15. Lastly, the peculiar features of an elected

office of Director in the Corporation, do not bring such

office within the meaning of 'office of profit'.

16. Thus, we are satisfied that the view of the High

Court does not suffer from any legal infirmity justifying

interference by us in this Appeal.

17. The Appeal is, accordingly, dismissed with no

order as to costs.

.........................J. (R.M. LODHA)

NEW DELHI; .........................J. NOVEMBER 30, 2011 (H.L. GOKHALE)